Joseph Zecca v. Township of Montclair

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE TAX COURT

COMMITTEE ON OPINIONS

August 26, 2013

Carmine D. Campanile, Esq.

28 Whippany Road, Suite B

Whippany, New Jersey 07981

Anthony Marchese, Esq.

Nowell Amoroso Klein Bierman, P.A.

155 Polifly Road

Hackensack, New Jersey 07044

RE: Joseph Zecca v. Township of Montclair

Docket No: 006914-2010

Dear Counsel:

This matter was opened to the court by the parties on cross-motions for summary judgment. By way of complaint, plaintiff seeks relief pursuant to N.J.S.A. 54:51A-7 for the 2007 tax year to correct an alleged error in the assessment of plaintiff s property located in the Township of Montclair. Defendant opposed such relief and cross-moved for an order of dismissal for plaintiff s failure to file a timely tax appeal for the 2007 tax year.

For the reasons explained more fully below, defendant s cross-motion is granted and plaintiff s motion is denied.

Findings of Fact and Procedural History

The court s findings of fact are based on the certifications submitted by the parties, as well as oral argument on the motions. R. 1:7-4. Both parties agree that the facts are undisputed and that the controversy lies within the interpretation of N.J.S.A. 54:51A-7, Correction of errors .

Joseph Zecca ( plaintiff ) owns income-producing property in the Township of Montclair ( defendant or township ) designated on the tax map as Block 4209, Lot 2, commonly known as 89 Pine Street ( subject property ). In 2006, the township retained the services of Appraisal Systems, Inc. ( ASI ) to perform a citywide property assessment revaluation, which went into effect for the 2007 tax year. As part of its revaluation services to the township, ASI created property record cards for each taxable line item in the assessor s real property tax list.1 The creation of the property record for each property was approved and certified by the assessor upon signing the tax list. Unable to gain access to the subject property, ASI relied on an exterior inspection of the subject to appraise the property and the 2007 assessment was set at $661,400. Plaintiff did not file a tax appeal for the 2007 tax year.

In early 2008, plaintiff was advised by his mortgage company of an escrow shortage in connection with the taxes owed for that year, and thereafter, he contacted the Montclair assessor to discuss the 2008 tax assessment. According to the assessor, [a]t or around March 4, 2008, the Property owner came to my office and requested that the assessment of $661,400 be adjusted due to the condition and rehabilitation of the interior of the Property. She further certified that [a]t or around March 4, 2008, I inspected the property and based on my judgment, I adjusted the assessment from $661,400 to $280,000 based on the interior condition of the Property. As a result of her findings, the assessor filed a 2008 tax appeal at the Essex County Tax Board (hereinafter Tax Board ) requesting that the assessment be reduced to $280,000. The Tax Board issued a Judgment reducing the assessment. The reason for the reduction in the assessment was set forth in a handwritten notation on the Judgment: to correct error in [the] 2008 tax list. Based on that language, plaintiff requested that the assessor change the 2007 assessment of the subject property and apply the 2008 Judgment. The assessor refused explaining that the time to file a tax appeal for 2007 had expired.

On May 26, 2010, plaintiff filed a Complaint against the township in the Tax Court pursuant to N.J.S.A. 54:51A-7 seeking relief for the 2007 tax year which states, in relevant part:

Plaintiff is the owner of property commonly identified as 89 Pine Street, Montclair, New Jersey, and known as Block 4209, Lot 2. For the year 2007, the Tax Assessor for the Township of Montclair erroneously, improperly, and without justification, assessed the land and building as follows: land $436,900.00; improvements: $224,500.00. Said assessment was in error. The Tax Assessor corrected the error for the year 2008 to an assessment as follows: land: $180,000.00; improvements: $100,000.00; total: $280,000.00. The Tax Assessor has failed and refused to correct the assessment for the year 2007.

 

In the Complaint plaintiff did not identify a specific error made in the 2007 assessment other than to set forth the reason listed on the tax board Judgment on which basis plaintiff argues that he is entitled to relief under both N.J.S.A. 54:51A-7 and Hovbilt, Ins. v. Township of Howell, 138 N.J. 598 (1994). Plaintiff relies on the Judgment as an acknowledgment by the assessor that an error correctable under the statute was made in the 2007 assessment. According to plaintiff, the error should be corrected for the year 2007 to reflect a total assessment off [sic] $280,000.

In support of the motion for summary judgment, plaintiff s counsel revised its theory of the case contending that the error in the 2007 assessment lies in the fact that ASI failed to gain access and inspect the interior of the subject property. Further, plaintiff did not know of the increased assessment until he received a deficiency notice on his escrow account for the year 2008. It was then too late to file an appeal for 2007.

The township opposed plaintiff s motion and cross-moved for summary judgment seeking an Order of dismissal for plaintiff s failure to file an appeal for the 2007 tax year. Defendant s moving papers state in relevant part:

Plaintiff is requesting that this Court reduce the 2007 tax assessment from $661,400 to $280,000 because the Montclair s Tax Assessor, Joan Kozeniesky, CTA ( Tax Assessor ) made an alleged error. Plaintiff, however, fails to identify or specify any error that would be correctable pursuant to N.J.S.A. 54:51A-7.

 

The 2007 tax assessment for the Property was $661,400. Appraisal Systems, Inc. ( ASI ), which performed the revaluation under the supervision of the Tax Assessor, created the property record for the Property, which was approved and certified by the Tax Assessor for the 2 007 Tax List. The 2007 assessment was set based on the Tax Assessor s exercise of discretion by certifying the 2007 tax list. . . .

After meeting with the Plaintiff in 2008, and after inspecting the Property, the Tax Assessor filed a 2008 tax appeal at the Essex County Board of Taxation. The property had not been inspected by ASI at the time of the revaluation because ASI could not gain access to the property. The Property s 2008 assessment was adjusted at the Essex County Tax Board on the recommendation by the Tax Assessor due to the condition and rehabilitation of the interior of the Property and not due to an error pursuant to the Correction of Errors statute.

In essence, defendant argues that plaintiff erroneously interprets the word errors in the 2008 Tax Board Judgment as an error under the correction of errors statute and that plaintiff misinterprets the assessor s actions in reducing plaintiff s 2008 assessment as an admission of an error pursuant to N.J.SA. 54:51A-7. Defendant adds that despite the inability of ASI to gain access to the interior of the subject, plaintiff has failed to sustain its burden of proof that the 2007 assessment was caused by an error correctable under the statute. According to defendant, plaintiff was required to file a tax appeal challenging the 2007 assessment to obtain relief. Thereby, the taxpayer s complaint should be dismissed.

Oral argument was conducted. The court inquired of the parties whether notice of the inspection by ASI was provided to plaintiff as required under N.J.A.C. 18:12-4.8(a)(9).2 Plaintiff s counsel conceded that his client must have received all the notices required to be sent by the township during the revaluation process (including the notice of assessment required under N.J.S.A. 54:4-38.1). The court provided the parties with the opportunity to supplement the record accordingly. Defendant submitted the certification of Jason Cohen, vice-president of ASI. According to Mr. Cohen, in May of 2006, ASI sent all Montclair property owners an introductory letter, dated May 2006, advising them of upcoming inspections. The letter, appended to the certification, states in relevant part:

The first step of the revaluation process is the inspection of all properties in the Township. In the coming months inspectors from Appraisal Systems Inc. will visit all properties, measuring and photographing the exteriors of the buildings and inspecting the interiors. In order to properly assess your property, it will be necessary for a representative of Appraisal Systems, Inc. to examine the interior. The first visit from an inspector will be between the hours of 9:30 a.m. and 5:00 p.m. If the homeowner is not present at the first visit, the inspector will leave a card specifying a return date to do the interior inspection. The notice will also have a telephone number to call to reschedule this appointment if the time or date is not convenient.

 

If your property has a unique condition that influences value, please send documentation to Appraisal Systems, Inc. 20 Wilsey Square, Ridgewood, N.J., 07450 and it will be considered.

 

According to the Cohen certification, during the revaluation ASI sent a field inspector to the subject property. ASI s practice required the inspector to leave a note with instructions for a subsequent inspection of the subject property if access was not attained. ASI did not inspect the interior of the subject because they could not gain access despite attempts to inspect the property on July 31, 2006 and on August 1, 2006.

Plaintiff s counsel submitted the supplemental certification of Joseph Zecca. The certification did not address the 2006 inspection attempts. Rather, the certification only made reference to 2007 and stated in relevant part: I have searched by [sic] records and have attempted to recall the events of 2007. I do not recollect ever having received any notice regarding an appraisers request to view the [subject] premises . . .

Plaintiff further certified:

I also wish to bring to the Court s attention the manner in which the Tax Assessor agreed on reassessing the premises in 2007. When I met with the Tax Assessor to inquire about the assessment, I brought with me a tax bill for a six (6) family residence which was also owned by me and located in Montclair. I argued to the Assessor that it was impossible to tax a two (2) family residence at the same amount as a six (6) family residence which has substantially more property. I also showed the assessor an identical property nearby which had a lesser valuation. As a result, the Tax Assessor agreed to amend the assessment accordingly.

 

Conclusions of Law

In deciding the cross-motions for summary judgment, this court is guided by the standard set forth in the seminal case Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). The case directs that when faced with a motion for summary judgment the court must consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party. . . are sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party. Id. at 523. In accordance with R. 4:46-2, which governs motions for summary judgment, [t]he judgment or order sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.

The parties move as a matter of law for summary judgment in their favor and the court upon considering the moving papers and oral argument concludes that there are no material facts in dispute and the matter is appropriately resolved through summary judgment. Thus, the only issue in this case is whether under the facts presented there was an error correctable under N.S.J.A. 54:51A-7.

This court s jurisdiction to review assessments on real property is established by N.J.S.A. 54:3-21a. The statute provides in relevant part:

[A] taxpayer feeling aggrieved by the assessed valuation of the taxpayer s property . . . may on or before April 1, or 45 days from the date the bulk mailing of notification of assessment is completed in the taxing district, whichever is later, appeal to the county board of taxation by filing with it a petition of appeal [or] file a complaint directly with the Tax Court, if the assessed valuation of the property subject to the appeal exceeds $1,000,000. In a taxing district where a municipal-wide revaluation or municipal-wide reassessment has been implemented, a taxpayer or a taxing district may appeal before or on May 1 to the county board of taxation by filing with it a petition of appeal or, if the assessed valuation of the property subject to the appeal exceeds $1,000,000, by filing a complaint directly with the State Tax Court.

 

[N.J.S.A. 54:3-21a.]

The New Jersey Supreme Court recently reiterated, the Tax Court is vested with limited jurisdiction defined by statute. McMahon v. City of Newark, 195 N.J. 526, 546 (2008)(citing N.J.S.A. 2B:13-2 and Union City Assocs. v. City of Union City, 115 N.J. 17, 23 (1989)). The right to appeal a real property assessment is statutory, and the appellant is required to comply with all applicable statutory requirements. Macleod v. City of Hoboken, 330 N.J. Super. 502, 505 (App. Div. 2000)(quoting F.M.C. Stores Co. v. Borough of Morris Plains, 195 N.J. Super. 373, 381 (App. Div. 1984), aff d, 100 N.J. 418 (1985)). The statutory scheme establishing this court s jurisdiction is one with which continuing strict and unerring compliance must be observed . . . . McMahon, supra, 195 N.J. at 543.

The correction of errors statute is an exception to the regular annual tax-appeal process established in N.J.S.A. 54:3-21a. It creates a longer period for seeking relief after the normal deadline for a standard appeal has expired. The statute provides:

The tax court may, upon the filing of a complaint at any time during the tax year or within the next 3 years thereafter, by a property owner, a municipality or a county board of taxation, enter judgment to correct typographical errors, errors in transposing, and mistakes in tax assessments, provided that such complaint shall set forth the facts causing and constituting the error or errors and mistake or mistakes, or either thereof sought to be corrected and that such facts be verified by affidavits submitted by the plaintiff. The tax court shall not consider under this section any complaint relating to matters of valuation involving an assessor s opinion or judgment.

 

[N.J.S.A. 54:51A-7.]

 

By the statute s plain meaning, the facts causing . . . the error or errors must be provided and matters of valuation involving an assessor s opinion or judgment shall not be correctable outside of the ordinary tax appeal process. N.J.S.A. 54:51A-7 allows the court to enter judgment to correct typographical errors, errors in transposing, and mistakes in tax assessments. However, the statute limits the breadth of its own power by stating that [t]he tax court shall not consider under this section any complaint relating to matters of valuation involving an assessor s opinion or judgment. Ibid. In Hovbilt, our Supreme Court defined the category of mistakes in assessments correctable under N.J.S.A. 54:51A-7:

[W]e hold that mistakes in assessment that are indisputable, and cannot plausibly be explained on the basis of an exercise of judgment or discretion by the assessor or his or her staff, are within the category of mistakes that can be corrected under the statute. Based on our characterization of the category of mistaken but correctable assessments, we hold further that the correct assessment must readily be inferable or subject to ready calculation on the basis of the assessment mistake for which correction is authorized.

 

[ Hovbilt, supra, 138 N.J. at 618-619.]

 

In reaching its holding, the Hovbilt Court analyzed the statutory scheme in an historical context and reviewed court decisions interpreting the statute. Moreover, Hovbilt was recently discussed by our Tax Court in 303, Inc. v. City of North Wildwood, 21 N.J. Tax 376 (Tax 2004). Judge Small analyzed the Hovbilt criteria for mistakes in tax assessments as follows:

The phrase mistakes in tax assessments must be construed liberally, and the court should apply the statute to all cases in which the mistakes are not subject to debate about whether the assessment to be corrected resulted from an assessor s exercise of discretion. Mistakes in assessments that are indisputable, and cannot plausibly be explained on the basis of an assessor or his or her staff, are within the category of mistakes that can be corrected under the statute. The correct assessment must be readily inferable or subject to ready calculation on the basis of the assessment mistake for which correction is authorized.

 

[Id. at 383 (citations omitted).]

 

Applying these standards to the present case, it is clearthat plaintiff has failed to identify an error correctable under N.J.S.A. 54:51A-7. There is no evidence in the record to support the proposition that an error in setting the 2007 assessment on the subject property occurred. Moreover, the facts establish that that the 2008 assessment was adjusted after the assessor filed an appeal to the county Tax Boardto lower the assessment based on her judgment as to the condition and rehabilitation of thesubject property inspected by her, in response to concerns raised by plaintiff regarding the amount of his tax bill.

As to the notice issue, plaintiff provided a vague certification that he is unable to recall the events of 2007 and does not remember, nor does he have record of, having received any notice. Moreover, the operative date in this matter is 2006, rather than 2007. The revaluation process began in 2006 with the letter sent by ASI dated May 2006, and by statute, real property shall be assessed to the property owner based on the value of the property as of October 1 of the pre-tax year, here, October 1, 2006. N.J.S.A. 54:4-23, 54:4-4.3 The court is satisfied defendant complied with the regulatory notice procedure based on the certification supplied in support of the cross-motion.

The court finds that plaintiff has failed to sustain his burden of proof that the 2007 assessment was caused by an error correctable under the statute. Accordingly, plaintiff s motion is denied and defendant s cross-motion is granted. An Order will be entered in accordance with this Opinion.

Very truly yours,

Christine Nugent, J.T.C.

1 The revaluation firm acts as an agent of the municipal tax assessor and all determinations made are submitted to, and approved by, the municipal tax assessor. N.J.A.C. 18:12-4.8.

2 The regulation delineates the procedure for the revaluation of real property by appraisal firms and requires the inspection of each property to be performed in the following manner:

No less than three attempts shall be made to gain entry to each property; [i]f successful entry has not been made after the first attempt, a card shall be left at the property indicating a date when a second attempt to gain entry will be made; [t]he card shall include a phone number and address to permit the property owner to contact the firm to make other arrangements, if necessary; [i]f entry is not possible upon the second visit, written notice shall be left advising that an assessment will be estimated unless a mutually convenient arrangement is made for a third visit to gain access to the property; [t]he firm shall schedule inspections during reasonable hours which shall include evenings and Saturdays; and [t[he municipal tax assessor shall be notified in writing of each failure to gain entry to a property and a list of all non-entries and reasons for same shall be provided to the municipal tax assessor prior to the mailing of values. N.J.A.C. 18:12-4.8(a)(9).

 

3 The court s decision is not intended as a determination of whether the absence of notice required by N.J.A.C. 18:12-4.8(a)(9) would constitute the type of error contemplated by N.J.S.A. 54:51A-7. That issue is not reached by this court.

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